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June 27, 1990


The opinion of the court was delivered by: McCURN, Chief Judge.


I. Introduction

The defendants move for dismissal of all the claims in the complaint, except the ADEA claim against the defendant Columbian Rope Company. In addition, the defendants move for reconsideration of this court's prior decision that plaintiff's filing of an administrative complaint with the EEOC but not with the New York State Division of Human Rights ("NYSDHR") constituted compliance with the administrative filing requirements of the ADEA, but was not an election of remedies under the HRL. In the alternative, defendants move for certification of the administrative filing question for interlocutory appeal to the Second Circuit Court of Appeals. Defendants also urge the court to decline to exercise pendent jurisdiction over plaintiff's state HRL claim if the court does not reverse its prior decision on the issue. The court heard oral argument on these motions on May 22, 1990.

II. Background

The factual background for this proceeding is gleaned from the complaint:

In April 1973, the plaintiff, a practicing attorney in New York City, was contacted by a personnel search agent who informed him of a "career position" as in-house counsel available at the defendant Columbian Rope Company ("CRC") in Auburn, New York. In May 1973, the plaintiff met with Paul George, then a member of CRC's board of directors and CRC's legal counsel, to discuss the position. According to the complaint, George, who is not a defendant in this action, told the plaintiff that the person in the new position would perform George's functions upon his retirement the following year, and would eventually become general counsel and secretary to CRC. Over the next several months, the plaintiff met or spoke with several representatives from CRC, including the president and other officers and directors, to discuss the position. Plaintiff alleges that he repeatedly informed the CRC representatives that it was important to him that he obtain a permanent "career position," and that they assured him it would be. On or about February 19, 1974, plaintiff was formally offered the position by then-president of CRC, Legare Hole. None of the terms or conditions of plaintiff's employment were put in writing, except for a job description, and an agreement that CRC would provide six months salary to the plaintiff if he was terminated for cause. Plaintiff alleges, however, that among the conditions orally agreed to was that his employment was a "permanent career position" that could be terminated only for cause. None of the CRC representatives whom plaintiff alleges he met or spoke with during this time, including Hole, are named as defendants in this action.

Plaintiff began his employment at CRC as "corporate counsel" on or about March 1, 1974. Approximately two months later, plaintiff was elected assistant secretary and then secretary and general counsel for CRC, positions he held until his termination. In July 1982, plaintiff, in his role as general counsel, interviewed defendant Richard W. Cook, a partner at the law firm Hancock and Estabrook, also a defendant in this action, as possible outside counsel should CRC, which was experiencing financial difficulties at that time, seek relief and/or reorganization under the Bankruptcy Code. In August 1982, CRC retained Cook as outside counsel upon plaintiff's recommendation.

Some time in 1984, Cook began performing personal legal work for the president of CRC, defendant George R. Metcalf, in addition to Cook's duties as CRC's outside bankruptcy counsel. Then on or about January 16, 1985, Cook was named as a member of CRC's board of directors, despite a legal memorandum circulated by the plaintiff recommending against electing Cook a director because of an appearance, in the plaintiff's opinion, of a conflict of interest. About this time, according to the plaintiff, began a scheme orchestrated by the defendants to terminate him unlawfully because of his age.

Plaintiff alleges that directors and officers, including defendants George Metcalf, D. Barton Chapman, Tristan E. Beplat, Robert W. Seidler, and S. Warren Metcalf, frequently spoke of the need for "new blood" and "young blood" within CRC and its subsidiaries. Plaintiff also alleges that during the period from 1982 to 1986, employees protected by the ADEA (over 40 years of age) were the subject of more than 80 percent of the "forced early retirements or abolished positions" at CRC.*fn1 During the years 1985 and 1986, plaintiff claims, defendant Cook and other partners in defendant Hancock and Estabrook engaged in repeated criticism of him with respect to his age, professional competence, and management of outside litigation.

In telephone conversations during the month of October 1986 with other CRC officers and directors, including defendants Beplat, Chapman, and George Metcalf, defendant Cook proposed that he assume all of plaintiff's duties as counsel and secretary at CRC, with the option of redelegating some of the legal work to other partners at defendant Hancock and Estabrook. Ultimately, all of CRC's directors conducted an informal breakfast meeting on the morning of October 30, 1986, at which they decided to terminate the plaintiff's employment as of June 30, 1987, and turn over all corporate legal matters to defendant Cook. At that time, Cook was 37 years of age. By January 1987, Cook had resigned as a director of CRC, but had assumed many of plaintiff's legal functions.

On or about March 2, 1987, plaintiff presented a memorandum to the board of directors, requesting a review of the decision to terminate him, and pointing out that he believed that by terminating him and replacing him with a younger person (Cook), they were in violation of the ADEA and HRL. At a regularly scheduled board meeting on March 5, 1987, attended by the plaintiff and defendants George Metcalf, Chapman, Stephen G. Ludt, Beplat, Seidler and Cook, plaintiff again requested reconsideration of the decision to terminate him. The directors also questioned plaintiff about whether he intended to pursue legal remedies for his termination, and implied that forbearance from legal recourse might be a condition of relief or other benefits. Plaintiff's answers to those questions are not apparent in the complaint. Nevertheless, following the conclusion of the meeting, plaintiff was handed a memorandum drafted by defendant Cook and signed by defendant George Metcalf terminating plaintiff immediately and instructing him to vacate his office. Plaintiff was paid his regular salary through the end of June 1987.

Plaintiff filed an administrative claim with the EEOC on or about August 26, 1987, alleging discrimination on the basis of age, and retaliation. Plaintiff typed the following request at the top of the charge form:

  Please do not file with the NYS Div. of Human
  Rights per discussions 8/24/87.

On or about September 3, 1987, a copy of the charge form was stamped as received from the EEOC by the NYSDHR. At the time plaintiff filed his charge, a "worksharing agreement" was in effect between the EEOC and the NYSDHR, which provided in part that:

The EEOC's regional director issued a determination on October 28, 1988, that the evidence did not establish that plaintiff's discharge was a violation of the ADEA, but that plaintiff's removal from his positions in March 1987 did constitute retaliation. The determination was upheld by the EEOC on appeal. Efforts were apparently made by the EEOC to settle the retaliation charge, which proved unsuccessful. The EEOC has closed its file in the matter.

The plaintiff subsequently commenced an action in this court against CRC, George Metcalf, and Cook, alleging, inter alia, that his employment was terminated in violation of the ADEA and the HRL. Those defendants subsequently moved to dismiss plaintiff's claims on a number of grounds, pursuant to Fed.R.Civ.P. 12(b)(6). This court issued a comprehensive memorandum-decision and order dated May 17, 1989, ruling upon the various aspects of defendants' motion. The court dismissed the claims against defendants Metcalf and Cook, leaving CRC as the only defendant. The court denied defendants' motion to dismiss plaintiff's ADEA claims for failure to commence administrative proceedings with the NYSDHR, as required under the ADEA. The court found that the forwarding by the EEOC to the NYSDHR of plaintiff's complaint constituted commencement of a state administrative proceeding for the purposes of the ADEA administrative filing requirements, but did not constitute a filing for the purposes of the election of remedy provisions of the HRL, under which the complainant is required to choose at the outset whether to commence an administrative proceeding or to bring an action in a court of competent jurisdiction claiming a violation of the HRL. If a complainant files an administrative complaint with the NYSDHR, he or she can then commence a court action only if the complaint is dismissed by the NYSDHR for "administrative convenience." N.Y. Exec.Law § 297(9).

On October 26, 1989, the NYSDHR issued a determination dismissing plaintiff's charge on the ground of administrative convenience. Defendant CRC then commenced a special proceeding in New York State Supreme Court pursuant to N.Y. Exec.Law § 298 challenging the dismissal and requesting that the matter be remanded to the NYSDHR for further investigation and determination. CRC contended that it is impermissible for the NYSDHR to dismiss a charge for administrative convenience when the sole basis is to allow the complainant to prosecute a federal court action that has already been commenced. CRC's petition was dismissed by the New York State Supreme Court by order dated April 11, 1990.

Plaintiff has now submitted to this court a corrected second amended complaint by leave of the court granted December 12, 1989. The complaint names as defendants CRC, and the following individuals and entities: George R. Metcalf, Richard W. Cook, D. Barton Chapman, Tristan E. Beplat, Robert W. Seidler, Stephen G. Ludt, S. Warren Metcalf, and the law firm of Hancock and Estabrook. The complaint asserts eight separate causes of action, as follow: (1) a claim of willful violation of the ADEA and the HRL based upon plaintiff's loss of employment; (2) a claim of retaliation, based upon CRC's removal of plaintiff from his positions in March 1987, in violation of the ADEA and HRL; (3) a claim for breach of an alleged oral contract between plaintiff and CRC for a permanent career position from which the plaintiff could only be removed for cause; (4) a claim against defendants George Metcalf, Cook and Hancock and Estabrook for allegedly inducing the breach of plaintiff's employment contract; (5) a claim for intentional infliction of emotional distress; (6) a claim under RICO, alleging a violation of 18 U.S.C. § 1962(b); a RICO claim alleging a violation of 18 U.S.C. § 1962(c); and a RICO claim alleging a violation of 18 U.S.C. § 1962(d).

The defendants move for dismissal of all of the above claims with the exception of the ADEA claim against CRC. The defendants also seek reconsideration of the court's previous determination that plaintiff's filing with the EEOC met the administrative filing requirements of the ADEA, but did not constitute an election of remedies that would preclude the plaintiff from pursuing his HRL claims in court. In the alternative, defendants move for certification of the following question for interlocutory review by the Second Circuit:

    Does the filing of an administrative complaint
  with the Equal Employment Opportunity Commission
  (EEOC) in New York, which is a deferral state,
  with a specific request to the EEOC not to file
  the charge with the New York State Division of
  Human Rights (NYSDHR) where the charge is
  forwarded by the EEOC to that state agency
  pursuant to a worksharing agreement but not acted
  upon in any fashion, satisfy the administrative
  filing requirements of the Age Discrimination in
  Employment Act (ADEA) and yet not constitute a
  filing with the NYSDHR for the purposes of the
  election of remedies pursuant to the N.Y. Human
  Rights Law?

The defendants also urge the court not to exercise pendent jurisdiction over plaintiff's HRL claims if the court decides not to reverse its prior decision. These arguments will be addressed by the court seriatim.

III. Discussion

A. Motion to Dismiss

The standards for considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) are well-settled. The motion is addressed to the face of the complaint, and the court must construe the complaint's allegations in the light most favorable to the plaintiff and accept the well-pleaded allegations as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A claim will be dismissed under Rule 12(b)(6) only if it appears beyond doubt that the plaintiff can prove no set of facts supporting his legal claim which will ...

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